Thank you to Wyrick Robbins Yates & Ponton LLP for updating the below content with North Carolina information.

Back to the Disaster Assistance Manual

10.1 – Overview

After a natural disaster, lawyers may face questions that range from simple requests about where to find the phone number for a particular state agency to more complex inquiries about health care insurance or malpractice liability.

As a lawyer, you must differentiate between questions that raise genuine legal issues or those that require you to direct someone to an appropriate agency, physician or another health care provider. For example, in the wake of Disaster Katrina, some legal hotlines reportedly received calls for advice on how to diagnose “Katrina Cough” and give first aid techniques. These are not questions you should answer.

On the other hand, there will be many questions that are well within the scope of a lawyer’s expertise. You may be asked to suggest sources of information concerning public resources or benefits, as well as asked questions concerning payment for health care services. This guide is designed to provide basic information to help you formulate your responses.

10.2 – Most Common Issues/Questions

Below is a list of typical questions that an attorney may be asked before, during and after a natural disaster. This chapter provides answers to these questions and more.

I lost my job as a result of the disaster. What will happen to my health insurance?

What if my employer drops health insurance coverage altogether?

When I go to the doctor’s office, I am usually asked to sign a “HIPAA” form. What is HIPAA?

What personal information of mine is covered by HIPAA?

How can I find out if my PHI has been wrongfully used or disclosed?

I lost my job, but my spouse is still employed. I used to be covered under my employer’s plan. Can I switch to my spouse’s plan?

I lost my health insurance papers and I need to file a claim. What should I do?

How can I get my prescriptions filled?

What should I do if I receive benefits and my benefits have been disrupted by a natural disaster?

10.3 – Summary of the Law

10.3.1 – Organization and financing of health care in the United States

In the United States, the delivery of health care involves a complicated network of providers, including, first responders (such as emergency medical technicians and paramedics), health care practitioners, hospitals, out-patient clinics, ambulatory care centers and emergency treatment centers. In many cities, health care providers enter into contractual relationships known as “integrated delivery systems.” An integrated delivery system is an organization or group of related organizations in which hospitals and physicians pool their activities to deliver comprehensive health care services to individuals. Such systems generally tie together a hospital or hospital system, professional practice groups of physicians and other providers, management systems, rehabilitation programs and, in most instances, an insurance provider or health maintenance organization (“HMO”).

The sources of health care financing are also wide-ranging. Most commonly, payment comes from a combination of sources, including a patient’s co-payment and additional funds from private insurance (including employer-sponsored health benefits), government benefits (such as Medicaid or Medicare) or even funds set aside to cover charity care. In rare circumstances, patients may pay the entire cost of the medical services that they receive.

Some health care financing arrangements still rely in part on a “fee-for-services” payment system, which is a system of health insurance payment in which a doctor or other health care provider is paid a fee for each service rendered, but most methods of insuring or financing health care involve some degree of managed care. Managed care combines the delivery and financing of health care to create economies of scale. In a managed care system, a combination of contractual obligations and incentives is used to align the expectations of patients, providers and payors with the goal of reducing the cost of health care delivery while maintaining a level of health care access that satisfies the patients’ needs. HMOs, preferred provider organizations (“PPOs”) and integrated delivery systems are examples of the managed care strategy at work.

10.3.2 – Provider/Patient Relationships

While health care providers are not subject to a common-law “duty to treat,” an obligatory duty may arise due to contractual obligations, statutory requirements or a de facto relationship established by the parties’ conduct. Lawyers should not assume that the “no duty to treat” principle is applicable in all cases.

Once a provider-patient relationship has been established, the provider assumes legal and ethical duties to the patient that, again, may be based on contract (such as may be required as a condition of the physician’s participation in an HMO), common law theories of tort, fraud and fiduciary standards, federal or state statutes, or professional ethics. In addition, both private accreditation systems and public quality control regulations play a part in defining the public’s reasonable expectations of health care providers.

It is also important to note that hospitals and health care systems owe certain duties to patients that are independent of any obligations that derive from the physician-patient relationship. These responsibilities typically include the duty to: (a) select, supervise and retain medical staff, (b) use reasonable care in the maintenance of facilities and equipment, (c) oversee all persons who practice medicine within the facilities and (d) formulate, adopt and enforce adequate rules and policies to ensure quality care for patients.

10.4 – Useful Websites

For information concerning disaster assistance services being offered in North Carolina, visit the North Carolina Department of Health and Human Services’ website: https://www.ncdhhs.gov/assistance.

For hurricane victim resources, visit:
https://www.nc.gov/agencies/volunteer/disaster-assistance.

For information about the Individual Assistance program, which provides medical and dental grants to home owners whose primary residences were damaged or destroyed by a natural or manmade disaster, visit North Carolina Department of Public Safety, Disaster Recovery:
https://www.ncdps.gov/our-organization/emergency-management/disaster-recovery; and
https://www.disasterassistance.gov/.

For an overview of North Carolina assistance programs related to health and human services, see pages 69 through 81 of the North Carolina Treasurer’s Disaster Recovery Guide: https://www.nctreasurer.com/slg/Resources/NCDisasterRecoveryGuide.pdf.

For insurance information and questions, visit the North Carolina Department of Insurance (DOI) website (http://www.ncdoi.com/) and its Consumer Guide to Health Insurance Continuation Rights: http://www.ncdoi.com/_Publications/What%20Happens%20to%20my%20Coverage%20if%20my%20Job%20Status%20Changes%20State%20Continuation_CBU1_CHE1_SmPU.pdf.

For a list of disaster relief resources, including assistance for individuals with special needs, visit the North Carolina HUD Disaster Relief and Emergency Assistance website: https://www.hud.gov/states/north_carolina/library/disasterrelief.

For information regarding Work First, North Carolina’s Temporary Assistance for Needy Families (TANF) Program visit: https://www.ncdhhs.gov/assistance/low-income-services/work-first-cash-assistance.

For general information related to North Carolina Medicaid visit: https://medicaid.ncdhhs.gov/medicaid.

For information related to disease epidemics, chemical and radiological releases, severe weather and natural disasters, visit the North Carolina DHHS Public Health Preparedness & Response’s website: https://epi.publichealth.nc.gov/phpr/.

10.5 – Frequently Asked Questions

10.5.1 – COBRA Health Insurance Continuation

Q 10.1 – I lost my job as a result of the disaster. What will happen to my health insurance?

If someone lost their job due to a natural disaster, they may be eligible for “continuation coverage,” which allows them to temporarily extend their group health coverage under federal or state law.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law that may provide continuation coverage to covered employees, their spouses, former spouses, and dependent children. To be eligible for COBRA continuation coverage, (i) the employee’s health plan must be covered by COBRA; (ii) a qualifying event must occur; and (iii) the individual must be a qualified beneficiary.

Generally, health plans covered by COBRA include employer-sponsored group health plans maintained by private employers with 20 or more employees, state employers, or local government employers. COBRA does not apply to plans sponsored by the federal government and some church-related organizations.

Qualifying events are events that cause covered employees to lose health insurance coverage. COBRA defines a qualifying event as (A) termination of employment for any reason other than gross misconduct, or (B) a reduction in the number of hours of employment. Spouses and dependent children are also subject to different qualifying events, such as divorce or loss of dependent status.

Finally, qualified beneficiaries are individuals who are covered by a group health plan on the day before a qualifying event occurs. A qualified beneficiary may be a covered employee, the employee’s spouse or former spouse, or the employee’s dependent child.

Before obtaining COBRA continuation coverage, it is important that the individual consider other options, such as a spouse’s plan, the Health Insurance Marketplace, Medicaid, or state-sponsored continuation coverage. COBRA may not be the most affordable option as it is more expensive than what the employee is used to paying; COBRA coverage includes the portion of the premium that the employer was previously paying.

Under North Carolina continuation laws, employees who are terminated or whose hours are reduced may be eligible for continuation coverage for up to 18 months. Unlike COBRA, North Carolina does not provide coverage beyond 18 months. To be eligible in North Carolina, an employee must be continuously insured for the three months preceding termination or a reduction in hours. An employee has 60 days after the date of termination or reduction in hours to elect for state continuation coverage. An employee is responsible for requesting continuation coverage from their employer.

Relevant Contact Information:

– For COBRA-related questions, the Department of Labor: 866-444-3272 (TTY 877-889-5627)
– For NC continuation coverage, the NC Department of Insurance: 855-408-1212
– For Medicaid, the NC Medicaid Division of Health Benefits: 919-855-4100 (TTY 877-452-2514)
– For Medicare, the Benefits Coordination & Recovery Center (BCRC): 855-798-2627 (TTY 855-797-2627)
– For the Healthcare Marketplace, visit healthcare.gov or call 800-318-2596 (TTY 855-889-4325)

Source: This question and answer subsection utilizes information provided by the Department of Labor (https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/cobra-continuation-health-coverage-consumer.pdf) and the North Carolina Department of Insurance (http://www.ncdoi.com/_Publications/What%20Happens%20to%20my%20Coverage%20if%20my%20Job%20Status%20Changes%20State%20Continuation_CBU1_CHE1_SmPU.pdf).

Q 10.2 – What if my employer drops health insurance coverage altogether?

If an employer goes out of business or otherwise cancels its group health plan coverage, neither federal COBRA nor state continuation coverage will be available to the employee or his/her family members. However, the employee and his/her family may be able to obtain individual insurance policies.

Under the Affordable Care Act (ACA), if an employer has 50 or more full-time employees, the employer is required to provide health insurance to employees or pay a penalty. A full-time employee is defined as an employee who works 30 or more hours per week. Employers with less than 50 full-time employees are not required to provide health insurance to its employees.

To sign up for a health plan through the Marketplace, visit https://www.healthcare.gov/have-job-based-coverage/if-you-lose-job-based-coverage/.

For insurance questions or for help with an insurance-related complaint, call the North Carolina Department of Insurance at 855-408-1212.

In addition, some low-income individuals may qualify for Medicaid or Health Choice. Medicaid or Health Choice may be available to individuals who are 65 years or older, blind or disabled, infants and children under the age of 21, low-income, in need of long-term care, or receiving Medicare. An individual is automatically eligible for Medicaid if they receive supplemental security income (SSI), Work First cash assistance, or state/county special assistance for the aged or disabled. To apply, https://medicaid.ncdhhs.gov/medicaid/get-started or call the DHHS Customer Service Center at 919-715-0844.

Source: This question and answer subsection utilizes information provided by HealthCare.gov and the NC Medicaid Division of Health Benefits (https://medicaid.ncdhhs.gov/medicaid/get-started/eligibility-medicaid-or-health-choice).

10.5.2 – HIPAA, Privacy, and Special Enrollment Rights

Q 10.3 – When I go to the doctor’s office, I am usually asked to sign a “HIPAA” form. What is HIPAA?

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) established privacy and disclosure requirements for health care providers and health care plans. However, there are certain exceptions to such requirements in the event of a disaster.

Emergency Situations: Preparedness, Planning, and Response
https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html.

U.S. Department of Health and Human Services Bulletin, Limited Waiver of HIPAA Sanctions and Penalties During a Declared Emergency (Sept. 2018)
https://www.hhs.gov/sites/default/files/2018-hurricane-florence-hipaa-bulletin-update.pdf.

U.S. Department of Health and Human Services Bulletin, HIPAA Privacy in Emergency Situations (Nov. 2014)
https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/emergency/hipaa-privacy-emergency-situations.pdf.

It is important to note that the HIPAA Privacy Rule does not restrict non-covered entities, such as the American Red Cross, from sharing patient information.

Here is a brief look at the issue:

Treatment. Health care providers as well as health plans can share patient information as reasonably necessary to provide treatment, coordinate care and arrange for payment. Patients may request reasonable restrictions on the use of their data, even for these purposes.

Public Health Activities. Public health authorities, such as the Center for Disease Control and Prevention (CDC), may obtain access to protected health information as necessary to prevent or control disease, injury or disability.

Notification. Health care providers and health plans can share patient information as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the individual’s care, of the individual’s location, general condition, or death.

Imminent Danger. Health care providers and health plans can share patient information with anyone as reasonably necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public – consistent with applicable law and standards of ethical conduct.

Facility Directory. Health care facilities maintaining a directory of patients can tell people who call or ask about individuals whether the individual is at the facility, their location in the facility, and general condition (e.g., critical or stable, deceased, or treated and released).

Minimum Necessary. For most disclosures of protected health information (excluding disclosures to health care providers for treatment purposes), information is limited to what is the “minimum necessary” to accomplish the purpose.

Source: This question and answer subsection utilizes information provided by the U.S. Department of Health and Human Services (https://www.hss.gov).

Q 10.4 – What personal information of mine is covered by HIPAA?

HIPAA applies to individually identifiable health information used by health care providers and health plans in their treatment, payment and health care operation functions. Under HIPAA, this information is known as “Protected Health Information” or “PHI”. Note, PHI does not include information used or disclosed by employers for employment-related reasons, nor by health care providers when they are performing employment-related functions (such as drug testing and fitness for work). Also, most law enforcement agencies are not subject to HIPAA.

For general HIPAA information, visit https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html.

Source: This question and answer subsection utilizes information provided by the U.S. Department of Health and Human Services (HHS.gov).

Q 10.5 – How can I find out if my PHI has been wrongfully used or disclosed?

If someone believes that their private medical information has been exposed or wrongfully shared, they should contact the person or entity responsible for the disclosure and ask them to retrieve the disclosed records, and request that whoever received them destroy their copies.

Patients have the right to request a prompt accounting of all disclosures that may have been made in error by a health care provider or health plan in the prior 6 years. Patients also have a right to review and receive a copy of all PHI in the possession of their health care providers and health plans. Health care providers and health plans are permitted to charge a “reasonable, cost-based fee,” which covers supplies, staff time for copying and processing, and mailing (if applicable). However, a provider or health plan may not charge for the time a staff member spends searching for the record.

If an individual believes that their rights are being denied or that their health information isn’t being protected, they should file a complaint with their provider or health insurer, and file a complaint with the United States Department of Health and Human Services (HHS), Office for Civil Rights (OCR). Under HIPAA, an entity cannot retaliate against an individual for filing a complaint. If a retaliatory action does occur, the individual should immediately notify OCR.

For more information, visit https://www.hhs.gov/hipaa/filing-a-complaint/complaint-process/index.html or call HHS at 877-696-6775.

Source: This question and answer subsection utilizes information provided by the U.S. Department of Health and Human Services (HHS.gov).

Q 10.6 – I lost my job, but my spouse is still employed. I used to be covered under my employer’s plan. Can I switch to my spouse’s plan?

Under certain circumstances, an individual may be eligible to switch to their spouse’s health insurance during a special enrollment period. Special enrollment periods are triggered by certain life events, including marriage, the birth or adoption of a child, or when the spouse is no longer eligible for coverage under their own company’s health insurance plan, which typically occurs when there is a job loss. This can also occur when a spouse loses Medicaid or CHIP eligibility.

Source: This question and answer subsection utilizes information provided by the Department of Labor (https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/faqs/hipaa-compliance).

10.5.3 – Health Insurance Claims

Q 10.7 – I lost my health insurance papers and I need to file a claim. What should I do?

To file a health insurance claim, an individual should contact their insurance company to obtain a health insurance claim form, or they may be able to download a copy from their insurance carrier’s website. The claim form should provide additional instructions for completing the form.

Many insurance companies now offer insured individuals the ability to visit an online portal to view their health and medical benefits plan online. The insured individual should contact their insurer to find out if they have online access. Many times, insurance providers will also have customer service representatives who can explain how to set up an online account.

Before filing any claims, the insured individual should first make copies of any documents or claims and keep these files for their records. The individual should also ask the insurer how long it will take to process the claim and keep a record of that date. It is important that the individual keeps an eye out for any claims award or denial notice so that they can respond accordingly.

If a claim is denied, the plan administrator will send a notice, either in writing or electronically, with a detailed explanation of why the claim was denied and a description of the appeals process. In addition, the notice will include the plan rules, guidelines, protocols, or exclusions (such as medical necessity or experimental treatment) used in the decision or provide the individual with instructions on how to request a copy from the plan. The notice may also include a specific request for the individual to provide the plan with additional information in case they wish to appeal the denial.

It is important to understand that claims are denied for various reasons, such as services not being covered by the plan or due to insufficient information about the claim. An individual may not appeal a decision if the healthcare services are clearly excluded from their policy.

If the decision is appealable, the insured individual may have the option to first engage in an informal appeal process. Under the informal reconsideration process, the individual’s doctor and the insurer’s physician work together to informally resolve the matter.

If the insured individual chooses to pursue a formal appeal, the insured individual or their healthcare provider must submit a written appeal to the insurance company. Information from the claim denial notice should be used in preparing an appeal. Individuals should also check with their plan to determine the appeal deadline. Some private insurers allow up to 180 days to file an appeal of a claim, but others only allow a very short timeframe.

Once the insurer receives an appeal, the company then has 30 days to respond in writing. The written notice must identify, among other things, the qualifications of the person who reviewed the appeal, the insurer’s decision and medical rationale, and instructions for submitting a “grievance.” A grievance does not pertain to medical necessity, but rather deals with any insurance company decision, such as contractual issues, the quality of health care services provided, and more.

The NC Department of Insurance, among other things, aids consumers in filing complaints to insurance companies, understanding their policies, and navigating denial claims. The NC Department of Insurance also offers a free service called External Review, which is available to individuals who are denied coverage based on medical necessity. An individual who needs any insurance-related assistance should visit https://www.ncdoi.com/Consumer/Requesting_Assistance.aspx or call consumer services at 855-408-1212.

Source: This question and answer subsection utilizes information provided by the North Carolina Department of Insurance (http://www.ncdoi.com/_Publications/Consumer%20Guide%20to%20Appeals%20and%20Grievances_CHE1_SmPU.pdf) and the U.S. Department of Health & Human Services (https://www.hhs.gov/regulations/complaints-and-appeals/index.html).

Q 10.8 – I’m enrolled in Medicare Part C (Medicare Advantage), but I can’t access any of my usual providers. What do I do?

If an individual needs medical attention and cannot access their regular provider during a disaster or emergency, they should call 1-800-MEDICARE (1-800-633-4227) to get more information about where to see a doctor. In the event of a disaster or public health emergency, Part C services may be provided at specified non-contracted facilities. In addition, Medicare Advantage Organizations (MAOs) may temporarily reduce out-of-network costs to in-network cost sharing amounts. During disasters and emergencies, additional guidance and requirements will be posted on the DHHS website (www.hhs.gov) and the CMS website (www.cms.gov).

Source: This question and answer subsection utilizes information provided by Chapter 4: Benefits and Beneficiary Protections (Section 150) of the Medicare Managed Care Manual (https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/mc86c04.pdf).

10.5.4 – Prescriptions

Q 10.9 – How can I get my prescriptions filled?

For general information about how to get prescriptions filled, contact the North Carolina Department of Health and Human Services at 919-855-4800. During natural disasters or emergencies, DHHS makes temporary changes to Medicaid and NC Health Choice programs to ensure faster and easier access to medications. For instance, prescriptions can be refilled early. For additional information, Medicaid enrollees should contact the NC Medicaid Contact Center at 1-800-662-7030. If the individual is in the NC Medicaid Lock-in Program and needs to change their designated lock-in program pharmacy, they should contact the NCTracks Pharmacy Call Center at 1-866-246-8505.

An additional resource is the North Carolina Board of Pharmacy, which can be located at 919.246.1050. The North Carolina Board of Pharmacy may also provide emergency updates on their website at http://www.ncbop.org/.

Evacuees in shelter should check with shelter staff for prescription assistance.

During a disaster or emergency, the federal government may activate its Emergency Prescription Assistance Program (“EPAP”), which provides eligible individuals with access to prescription medications, medical equipment and supplies, and vaccinations. Those eligible for EPAP receive a free thirty (30)-day supply of their medication.

During a disaster, individuals with prescription questions regarding EPAP eligibility, covered drugs and durable medical equipment, and claim submission may call 1-855-793-7470. This number is only active during a declared disaster in which EPAP has been activated.

Eligibility for the Emergency Prescription Assistance Program:

Must be from a county declared as a disaster area. Recipients must demonstrate residence within the covered area. Zip codes of areas determined eligible for EPAP will be posted to the EPAP website (http://www.phe.gov/preparedness) just prior to or during the activation. Identification can be a driver’s license, state issued identification card, current lease, utility bill or other credible attestation of residence.

Must have no prescription insurance coverage.

Source: This question and answer subsection utilizes information provided by the North Carolina Board of Pharmacy (http://www.ncbop.org/PDF/HurricaneFlorenceMedicaidBeneficiariesFactSheet092018.pdf) and the U.S. Department of Health & Human Services (https://www.phe.gov/Preparedness/planning/epap/Pages/epap-for-patients.aspx).

Q 10.10 – I’m enrolled in a Medicare Part D Prescription Drug Plan. How can Medicare help me with my prescriptions?

If an individual had to leave their home without their medicine, or if their medicine was damaged or lost due to the disaster or emergency, they should try to refill the medication at their usual network pharmacy. Pharmacies are expected to suspend “refill too soon” restrictions to allow enrollees to get necessary medications. If an individual is unable to go to their local pharmacy, they should contact their Medicare Advantage or Part D plan at 1-800-MEDICARE (1-800-633-4227) for more information about nearby network pharmacies.

If an individual is unable to get their prescription at an in-network pharmacy, their plan can help them get it at an out-of-network pharmacy. Medication from an out-of-network pharmacy may be more expensive. To get a refund from their plan, the individual should keep their receipt and ask their plan where to submit those along with a paper claim form.

If the individual had to evacuate and may not be able to return home for some time, they should try to obtain and extended-day supply of their prescription. The individual should first ask their plan whether they offer extended-day supplies and which pharmacies they can use to get them.

For more information, visit Chapter 5: Benefits and Beneficiary Protections (Section 50.12) of the Prescription Drug Benefit Manual (https://www.cms.gov/Medicare/Prescription-Drug-Coverage/PrescriptionDrugCovContra/PartDManuals.html).

Source: This question and answer subsection utilizes information provided by the Centers for Medicare and Medicaid Services (https://www.medicare.gov/Pubs/pdf/11377-Care-Drugs-Disaster-Emergency.pdf).

10.5.5 – Benefits

Q 10.11 – What should I do if I receive benefits and my benefits have been disrupted by a natural disaster?

During an emergency or disaster situation, NC Medicaid makes temporary changes to its policies and procedures. For the most up-to-date information, beneficiaries should visit https://medicaid.ncdhhs.gov/ or https://medicaid.ncdhhs.gov/nc-medicaid-hurricane-florence-response-recovery. Alternatively, the individual may call the NC Medicaid Customer Service Center at 800-662-7030.

The Disaster Supplemental Nutrition Assistance Program (D-SNAP) gives food assistance to low-income households with food loss or damage caused by a natural disaster. Individuals who would not normally qualify for SNAP may qualify for D-SNAP. For more information about SNAP during an emergency or disaster, call the NC SNAP hotline at 1-866-719-0141. Eligible individuals may also be eligible for WIC and should visit https://www.nutritionnc.com/wic/ for additional information.

For general information regarding benefits, visit https://www.benefits.gov/benefits/browse-by-state/state/174.

 

Back to the Disaster Assistance Manual